Appeal from the Circuit Court of Kankakee County; the Hon. John F. Michela, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant, Henry Mounson, was convicted following a jury trial of the offenses of felony murder and aggravated battery arising out of an altercation in the Kankakee County jail on February 27, 1986, which resulted in the death of Jerome Combs, a correctional officer on duty that evening. The circuit court of Kankakee County sentenced defendant to serve concurrent terms of 35 and 5 years, respectively, in the Department of Corrections. Defendant appeals from his conviction and sentence for felony murder.

The issues before us are: (1) whether the Illinois felony murder statute violates constitutional assurances of proportionate penalties and due process; (2) whether the fitness hearing at which defendant was found restored to fitness to stand trial violated minimum due process guarantees; (3) whether the evidence against defendant was too contradictory and confusing to support a finding of guilt of felony murder beyond a reasonable doubt; and (4) whether the sentencing court erroneously considered factors implicit in the offenses for which defendant was convicted. We affirm.

The State's case tended to establish that on the evening of February 27, 1986, while residing at the Kankakee County Detention Center, defendant began waving a towel in front of one of the television camera monitors for the cellblock dayroom to attract the attention of the correctional officers then on duty. One of the officers, Della Hagler, turned on the intercom and asked defendant what he wanted. Defendant responded that he had been trying to get attention all day without success and then he threw the towel over the camera. He refused to remove it and challenged Hagler to come up to the cellblock and remove it herself.

Hagler solicited the assistance of the male officers on duty and proceeded upstairs to the cellblock with Officers Derrell Upton, Antonio Moran, Jerome Combs, and Walter Johnson, their supervisor. Defendant and one other inmate were in the dayroom when the officers arrived. Defendant cursed the officers monitoring the closed circuit television, demanded a cigarette and refused to return to his cell before 10 p.m. Defendant removed his shower slippers and grabbed a table. The male officers attempted to physically force defendant into his cell. Defendant resisted by kicking, bucking and grabbing onto the cell bars. The victim, Combs, was at defendant's feet as he, Moran and Upton attempted to carry the defendant, still struggling, in a prone position into a cell. Defendant kicked Combs in the chest and Combs collapsed. An expiration of air was heard, and the officers noticed that Combs was on the floor with his head against the cell bars, his eyes were glazed, and he was not breathing.

The officers' resuscitation efforts proved futile, as did those of the paramedics who were called to the scene. Combs was pronounced dead upon his arrival at the hospital. The Kankakee County medical examiner, Dr. James Blanding, determined that Combs died from asphyxiation due to aspiration of gastric contents. Blanding's autopsy also revealed that Combs -- a 24-year-old, weighing about 250 pounds and about 6 feet 2 or 3 inches tall -- had an enlarged, diseased heart; but Blanding found no indication that the heart had malfunctioned or was related to Combs' death.

Defendant was charged with murder in two counts-based on a killing by conduct which defendant knew created a strong probability of death or great bodily harm (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)) (count I), and while attempting and committing the forcible felony of

In this appeal, defendant argues that the felony murder statute, as applied to aggravated battery, is unconstitutional. Defendant posits that the mental state for felony murder as charged in this case is less culpable than that of involuntary manslaughter, and, since the sentencing scheme for the former, a Class X offense, is disproportionate to that for the latter, a Class 3 felony, the statute cannot withstand scrutiny under the due process and proportionate penalty clauses of the Illinois and Federal Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§ 2, 11). In support of his argument, defendant cites to our supreme court's opinion in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.

Constitutional challenges to the felony murder statute as applied to aggravated battery were generally rejected by this court in People v. Carpi (1976), 44 Ill. App. 3d 364, 358 N.E.2d 355. Nonetheless, because defendant's argument based on Wisslead places a slightly different slant on the issue, we choose to reassess our views in the context here presented. In Wisslead, defendant was charged with unlawful restraint and armed violence predicated on unlawful restraint. The court, in finding that the armed violence statute violated constitutional guarantees of due process and proportionate penalties, compared the offense of armed violence with the offenses of aggravated kidnaping and forcible detention. The court noted that when the presence of a gun was added to unlawful restraint, a Class 4 felony, the offense could be charged as armed violence, a Class X felony. However, when the same weapon was added to a more serious predicate offense -- kidnaping, a Class 2 felony -- the offense became aggravated kidnaping, a Class 1 felony. Similarly, the offense of forcible detention, a Class 2 felony, includes all of the elements of armed violence predicated on unlawful restraint, but carries a lesser penalty than the Class X offense of armed violence.

In this case, the mental state of simple battery, a Class A misdemeanor, is intentionally or knowingly causing bodily harm or making physical contact of an insulting or provoking nature. (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a).) Simple battery is enhanced to aggravated battery when the defendant further knows that the individual harmed is a correctional institution employee. (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6).) When the element of the individual's death is added, the offense becomes felony murder. The mental state for involuntary manslaughter, by comparison, is recklessness. (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a).) By definition, ...

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